Dan Bunting looks at whether a 'selfie' in the voting booth could constitute a criminal offence...
In this blog, first published on the Halsbury's Law Exchange, Dan Bunting looks at whether a 'selfie' in the voting booth could constitute a criminal offence
Elections nowadays - particularly those for local councils and the European Parliament - often struggle to muster a 50% turnout. In light of that, anything done to engage people in the process is surely a good thing, right?
Generally speaking, the younger the age group, the lower the turnout. In light of that, it is not surprising that there were attempts to target the 'youth' in relation to this. One such attempt, by an organisation called Give Your Vote, encouraged people to take election selfies (if you don't know what a selfie is then you probably won't be reading this, as it's an electronic publication).
You would expect in this day at age that this sort of thing would be encouraged by everyone, but it seems not. Step forward the Electoral Commission, which wrote to Give Your Vote saying: "UK electoral law sets out a number of provisions regulating the secrecy and integrity of the voting process. The website appears to encourage UK voters to take a picture of their completed ballot paper in order to show another person how they have voted, which may contravene the relevant provisions relating to the secrecy of the ballot set out in section 66(3) of the Representation of the People Act 1983."
Are they right? The relevant legislation is as follows:
s66(3) No person shall:
(a) interfere with or attempt to interfere with a voter when recording his vote;
(b) otherwise obtain or attempt to obtain in a polling station information as to the candidate for whom a voter in that station is about to vote or has voted;
(c) communicate at any time to any person any information obtained in a polling station as to the candidate for whom a voter in that station is about to vote or has voted, or as to the number (or other unique identifying mark) on the back of the ballot paper given to a voter at that station;
(d) directly or indirectly induce a voter to display his ballot paper after he has marked it so as to make known to any person the name of the candidate for whom he has or has not voted.
My own view, for what it's worth (and it's certainly not legal advice), is that an 'election selfie' is actually a criminal offence - at least it can be, depending on what is on the photo. If I take a photo of my completed ballot paper then this is surely "information obtained in a polling station as to the candidate for whom a voter in that station is about to vote or has voted". If I then tweet it, then this is surely a "communication" to another person (assuming that someone reads my Twitter feed, and I know that my Mum does, at the very least).
Although Pt II and III of the RPA have specific provisions relating to interpretation, Pt I (containing this offence) does not. The general interpretation section does not assist either. Searching the electronic database there appears to have been a grand total of precisely zero prosecutions under the Act.
Is the law sensible? No, in a word. As to how it came about, you can see how it made sense at one point, and it is clearly designed to protect the secret ballot. I haven't checked Hansard, but I doubt anyone would consider prosecuting somebody for revealing how they themselves have voted. I doubt that it would survive an Art 10 challenge and/or an abuse on public interest grounds.
As to how this came about, the clue is in the year of the Act - 1983. To take and communicate a selfie at that time would have involved taking in a camera, dropping the negatives off at Boots, waiting for a few days before collecting them and posting them to your 'followers' - a time consuming process. As in so many areas, the internet has been a game changer and the law is playing catch up (the Law Commission is scheduled to look at Electoral Law, reporting back with recommendations next summer).
I live in Tower Hamlets, where the local elections are covered by the 1983 Act. There was some confusion as to what the status of European elections were, but it was helpfully pointed out by Rich Greenhill that r 29(4)(d) European Parliamentary Election Regulations 2004 has identical provisions to s66 RPA covering European elections.
No doubt this will be looked at and revised next year (after the General Election, so be careful), but until then, maybe best to not tweet photos of your actual ballot paper, or you could be looking down the barrel of a six-month sentence...
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